[1] A vehicle is stolen from a commercial garage. The vehicle is crashed. Someone is injured. Does the business owe a duty of care to the injured party? The question in this appeal is whether the courts below erred in recognizing a duty of care owed by a business that stores vehicles to someone who is injured following the theft of a vehicle.

[1] The sole issue in this appeal is whether a “Results Achieved Fee” charged by the appellant law firm in a family law matter is a prohibited contingency fee agreement under the Solicitors Act, R.S.O. 1990, c. S. 15 (the “Act”). I have concluded that the fee is a contingency fee agreement within the meaning of the Act and is thus prohibited.

[28] With all due respect, I believe the decision in Graff was wrongly decided, and I would not follow it in this case. In Graff, the Court accepted that the arrangements between party members were essentially contractual in nature; that the party, in its leadership contest, was not exercising a public decision making power; and that the party was not an agent of government nor controlled by government (paras. 12-14). However, the Court noted that parties receive considerable public funds, and they exercise a compulsory power over their members. It is apparent from the reasons that the Court focused on the importance of the decisions of political parties to the voting public. Nordheimer J. relied heavily on the “exceptional circumstances” factor, noting that Setia and Air Canada provide a definition of that category. However, had he looked to the sparse case law cited in Air Canada, he would have found that this category still requires a consideration of the nexus between the decision and an exercise of governmental power.